at end of Crown’s case — Trial judge erring in finding that he was obligated to accept C’s evidence as credible and reliable and that Crown
could not change its theory of liability at end of its case to include
common unlawful design under s. 21(2) — Evidence providing basis
upon which reasonable and properly instructed jury could convict
accused of manslaughter under s. 21(2) of Code — Criminal Code, R.S.C.

1985, c. C-46, s. 21(1)(b), (2).

The accused was charged with manslaughter. Two men with guns attempted to
rob an illegal poker tournament operating out of a banquet hall. One person was
killed during a struggle, and one of the robbers was accidentally shot. A witness,
C, saw two men running from the banquet hall and getting into a Honda Civic.

C testified that there were only two people in the car and that both were in
the front seats. Blood from the wounded robber was found in the back seat of the
Civic and nowhere else in the vehicle, and robber seeking medical attention for
gunshot wound. The accused had rented the Civic, and cellphone evidence tied
him to the banquet hall just before and at the time of the robbery. The Crown’s
theory was that the accused was the getaway driver for the two robbers and that
he was guilty of manslaughter as a party. At the end of the Crown’s case, the
defence moved successfully for a directed verdict of acquittal. The trial judge
found that he was bound to accept C’s evidence as credible and reliable and that
the Crown could not change its theory of liability at the end of its case to argue,
as it did during submissions on the motion, that regardless of accused’s role in
robbery, he was liable under s. 21(2) of the Criminal Code pursuant to a common
unlawful design. The Crown appealed.

Held, the appeal should be allowed.

The trial judge erred in approaching his task on the motion by asking what
inferences could be drawn on the assumption that the jury accepted C’s evidence
as accurate. He should have asked whether, having regard to all of the evidence,
including C’s evidence, there was a legal basis upon which a reasonable jury
could find the accused guilty of manslaughter. That analysis required a consideration of the possibilities that the jury, having regard to the blood in the back seat
of the Civic, would not accept C’s evidence as accurate, or that despite C’s evidence, would conclude that the accused was guilty of manslaughter.

There was ample evidence upon which a properly instructed reasonable jury
could find that the accused was liable for manslaughter under s. 21(2) of the
Code as he formed a common intention to rob the poker tournament and that his
precise role in the robbery was irrelevant. The evidence connecting the cellphone
to the robbery and to the accused, combined with the evidence connecting the
accused to the getaway car, provided a basis upon which a reasonable jury could
infer that the accused was a party to the plan to rob the poker tournament.

It would be reasonable for a jury to infer that the accused knew that the robbers
would be armed and prepared to overcome resistance in effecting the robbery.

It flowed from that inference that the jury could infer that the accused knew or
ought to have known that it was probable that one of the robbers would cause
non-trivial harm to someone in the course of committing the robbery.

The trial judge erred in holding that the Crown was bound by its theory that
the accused was the getaway driver and reliance on s. 21(1)(b) that he was an
aider. The Crown was entitled to rely on any theory of liability available on
the evidence, absent a demonstration by the accused of prejudice to his ability to
make full answer and defence. If the accused wished to bind the Crown to
its theory, it could have brought a motion for particulars. The accused did
not demonstrate any prejudice, or at least any prejudice that could not be fully